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H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

matter, one binding the wife alone and the other the husband alone, it is just as essential for the defendants' purpose that the complaint should charge a several breach on the part of both as the making of a several contract, and clearly it does not charge either the one or the other. If the complaint states anything more than a single cause of action for breach of the contract and that against the wife only, it is a single cause of action against the husband and wife jointly, and that theory would be equally fatal to the demur


It was quite possible and competent for the husband when making the contract to bind himself and his wife jointly. In that case there would be but one contract and but one cause of action, and possibly that was the theory upon which the learned counsel for the plaintiff constructed the complaint. It may be that he will not be able to establish such a contract at the trial. But the question here is whether such a contract is not stated on the face of the complaint. After stating the making of the contract as above described, the complaint avers that the defendants agreed on their part to arrange a concert tour for the plaintiff, to secure engagements or bookings for him in advance, arrange dates, routes, &c., and do all the preliminary work required of a manager of a high-class artist. Now this amounts to an allegation that the defendants jointly undertook to do what is therein alleged, and that the plaintiff accepted the promise in that character. The contract was a verbal one and an allegation that the defendants agreed to do certain things amounts, or may amount, to a statement of a joint contract. Then again it is alleged that the defendants committed a breach of the contract in refusing to perform its terms and conditions, and have not allowed the plaintiff to do the things which they engaged him for. It is difficult to see how the defendants jointly could have committed a breach of the contract unless they made it in that capacity. Clearly the meeting of minds charged in the complaint was between

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

the husband as agent for his wife on the one side, and the plaintiff on the other. As already remarked, the complaint states what took place only in substance and according to its legal effect, and then it proceeds in these words: "Whereby defendants agreed on their part," &c. It is then alleged that the defendants refused to make engagements for the plaintiff to sing at concerts and canceled engagements already secured in violation of the agreement. Then it is stated that the defendants induced the plaintiff to pay to them the sum of $350 to be used in advertising, and that they have refused to account for the expenditure or to return that sum to the plaintiff. This is a distinct allegation of the payment of money to the defendants jointly, which, according to the allegations of the complaint, the plaintiff was entitled to have returned to him. So that upon any view of this pleading there is but one cause of action stated upon a contract either of the wife alone, made by her agent, or by husband and wife jointly. If it is indefinite or uncertain in this respect the remedy to correct it is by motion and not by demurrer.

I have perhaps discussed the question presented by this appeal at greater length than the importance of the question would seem to demand. It is due to the counsel on both sides to say in conclusion that if they had carefully studied how to inject vexatious questions into a very simple case, they could not have met with a greater measure of success than seems to be evidenced by this record. This remark applies equally to the form of the complaint and the form of the demurrer. I think on the whole that the case was properly decided below, and that the order appealed from should be affirmed, with costs in all courts, with leave to the demurring defendant to answer on payment of costs. The question certified should be answered in the negative.

CULLEN, J. (dissenting.)-While special pleading at common law was a marvel of legal accuracy and clearness and had the advantage of presenting for determination by the

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

jury sharply defined issues of fact formulated in advance of the trial, still, owing to its technical character, substantial causes of action and defenses were often excluded, and at times a party was defeated, not by the proofs but by the pleadings. To correct these evils the Code introduced a radically different system of pleading, and required a party to state in his complaint only "a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and the demand of the judgment to which the plaintiff supposes himself entitled." Under the new system pleadings have been construed with great liberality, but manifestly there must be some limit to the application of this rule in order to protect the rights of the adverse party. The great strength of the complaint now before us lies, if I may be pardoned the seeming contradiction, in its weakness, its prolixity and its confusion of expression. It means all things to all men. The judge at Special Term and the majority of the judges in the Appellate Division have held that the complaint states a cause of action on which the defendant Paula Wolfsohn (the wife of the appealing defendant) is liable, because the appellant was her agent in making the contract for the breach of which the action is brought, and on which the appellant is liable, because, though making the contract as an agent, he failed to disclose his principal; and both courts have held that the defendants could be sued in a single action. The question of joinder of parties upon which the decision below proceeded is not passed upon by my associates, some of whom construe the complaint as alleging a joint contract of both defendants, while the prevailing opinion suggests a doubt whether any cause of action is charged against the appellant. Thus the draftsman has formulated a complaint as to the construction of which the courts are not in accord, though all agree the decision should be in his favor. He may succeed on the trial by proving either a joint liability of both defendants or the several liability of the appellant by reason of

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

his failure to disclose the name of his principal, though it is yet to be determined whether an agent and an undisclosed principal can be sued in the same action, since that question will not survive the withdrawal of the demurrer. It seems to me, therefore, that the pleader is not justly subject to the criticism passed upon him in the prevailing opinion. How could the most learned, logical and accurate of pleaders have done as well for his client?

Section 484 of the Code of Civil Procedure provides that causes of action can be joined only when, except as otherwise prescribed by law, they affect all the parties to the action. By section 488 a defendant may demur when causes of action have improperly been united. The objection that the causes of action stated do not affect all the defendants is as good a ground for demurrer as the objection that one cause of action is on a contract and another for personal injury (Nichols v. Drew, 94 N. Y. 22). I dissent entirely from the proposition "that in order to sustain a demurrer on this ground the complaint must contain two or more causes of action so well stated and so complete and perfect that the court can divide them into the necessary number of actions." If this were the rule of practice the plaintiff would be very foolish to state each cause of action "complete and perfect" when imperfection would avoid a demurrer. But the rule is to the contrary. "If the complaint contains several causes of action improperly united contrary to the Code, as is claimed, the vice may be reached by a demurrer, and the failure of the plaintiff to state them separately and number them would not be an answer to it, nor would a failure to move to correct the complaint in this respect defeat the effect of a demurrer. The plaintiff cannot deprive the defendant of the benefit of a demurrer upon this ground by omitting to number his causes of action. A substantial remedy cannot be prevented by a neglect to observe the rules of practice, nor in a case like this would the defendant be regarded as waiving such remedy by not making

H. Whitney Tew, Respondent, v. Henry Wolfsohn, Appellant.

this motion" (Goldbery v. Utley, 60 N. Y. 429; see also Wiles v. Suydam, 64 N. Y. 173). As was said by Judge Pryor in Adams v. Stevens (7 Misc. Rep. 468) "the demurrer is not obviated by the fact that the several causes of action are indistinguishably blended in a single count or complaint."

We now come to an examination of the allegations of the complaint. It first states that the appellant carried on business ostensibly on his own behalf, but, in fact, as the agent of his wife, and without disclosing his wife as principal; that a contract was entered into between the plaintiff and the appellant "acting as agent of his undisclosed principal, Paula Wolfsohn," whereby the plaintiff appointed the appellant his manager in America for a definite term and "whereby defendants agreed on their part that said Henry Wolfsohn would arrange a concert tour for the plaintiff," &c.; that the plaintiff performed the terms and conditions. of said contract on his part; and "that defendants have wholly failed and refused on their part to perform the terms and conditions of the contract above set forth." It is also alleged that the plaintiff paid the defendants a sum of money for which they failed to account. This last states a joint liability on the part of both defendants, but it is plainly a separate cause of action, for the suit is brought chiefly for damages for breach of the contract above recited. It is doubtless true that in a certain sense the breach of the contract declared on gave rise to but a single claim, but it by no means follows that it constituted but a single cause of action. Whether it created more than one cause of action depends on the number of parties liable for the breach and the character of their liability. A single claim even against a single party may give rise to separate causes of action. when that claim is sought to be enforced on different grounds. In Wiles v. Suydam (64 N. Y. 173) the complaint, in a single count, charged the defendant with liability for a debt of a corporation of which he was both a stockholder and

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